EXHIBIT 10.1
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated
as of June 28, 2002, is between SAVVIS COMMUNICATIONS CORPORATION, a Delaware
corporation (the "COMPANY") and Constellation Venture Capital II, L.P., a
Delaware limited partnership, Constellation Venture Capital Offshore II, L.P., a
Cayman Islands limited partnership, The BSC Employee Fund IV, L.P., a Delaware
limited partnership, and CVC II Partners, L.L.C., a Delaware limited liability
company (the "PURCHASERS").
WHEREAS, the Company desires to issue and sell to each
Purchaser, and each Purchaser desires to purchase from the Company, shares of
the Company's Series A Convertible Preferred Stock, par value $.01 per share
(the "SERIES A PREFERRED STOCK") on the terms and subject to the conditions set
forth herein;
WHEREAS, on March 18, 2002, the Company filed a certificate of
designation of the powers, preferences and relative, participating, optional and
other special rights and qualifications, limitations and restrictions thereof
relating to the Series A Preferred Stock (the "CERTIFICATE OF DESIGNATION");
WHEREAS, the Series A Preferred Stock is convertible into
shares (the "CONVERSION SHARES") of the Company's Common Stock, $.01 par value
("COMMON STOCK"); and
WHEREAS, as a further inducement to the Purchasers' purchase
of shares of Series A Preferred Stock, the Company will issue to the Purchasers
warrants to purchase 10,000,000 shares of Common Stock (the "WARRANT SHARES"),
in the form attached hereto as Exhibit A (collectively, the "WARRANTS");
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
I. PURCHASE AND SALE OF SECURITIES
SECTION 1.01 Authorization; Agreements to Sell and to
Purchase. (a) On the Closing Date (as defined in Section 1.02) and on the terms
and subject to the satisfaction of the applicable conditions set forth in this
Agreement, the Company shall issue and sell to each Purchaser, and each
Purchaser, severally and not jointly, shall purchase from the Company, that
number of shares of Series A Preferred Stock set forth opposite the name of each
such Purchaser in Annex I (the "PREFERRED SHARES") and a Warrant for a purchase
price per share equal to $1,000 (the "PURCHASE PRICE") payable as provided in
Section 1.01(b).
(b) Payment. On the Closing Date and on the terms and subject
to the satisfaction of the applicable conditions set forth in this Agreement, as
payment in full for the Preferred Shares being purchased by each Purchaser on
such date and against delivery by the Company of the certificate or certificates
representing such Purchaser's Preferred Shares and Warrants being purchased on
such date, each of the Purchasers set forth in Annex I shall pay the amount set
forth opposite the name of such Purchaser in Annex I by wire transfer of
immediately available funds to an account designated by the Company on the day
immediately prior to the Closing Date.
(c) Provisions of General Application. At the Closing
(as defined in Section 1.02), (i) the Company shall issue and deliver to each
Purchaser, against payment of the Purchase Price therefore, certificates
evidencing the Preferred Shares being purchased by such Purchaser, registered in
the name of such Purchaser, free and clear of all liens, charges or other
encumbrances of any kind, and (ii) the Company shall issue and deliver to the
Purchasers the Warrants registered in the name of the Purchasers, free and clear
of all liens, charges or encumbrances of any kind.
SECTION 1.02 Closing. The issuance and purchase contemplated
by Section 1.01 (the "CLOSING") shall take place on a date (the "CLOSING DATE")
to be specified by the Company and the Purchasers, which date shall be no later
than the second business day after the date as of which all the conditions set
forth in Sections 6.01 and 6.02 have been satisfied (or, to the extent
permitted, waived by the parties entitled to the benefit thereof). The Closing
shall take place at the offices of Xxxxx & Xxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as may be mutually agreed upon by
the Purchasers and the Company.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers on the
date hereof and on the Closing Date as follows:
SECTION 2.01 Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
own or lease and operate its properties and assets and to carry on its business
as it is now being conducted and as presently proposed to be conducted. The
Company is duly qualified as a foreign corporation to do business, and is in
good standing, in each jurisdiction in which the character of its properties
owned or leased or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified would not have a material
adverse effect on the properties, assets, financial condition, operating
results, business or prospects of the Company and its Subsidiaries (as defined
in Section 2.02), taken as a whole (a "MATERIAL ADVERSE EFFECT").
SECTION 2.02 Subsidiaries. Except for the Subsidiaries
disclosed in the Company SEC Filings (as defined in Section 2.08), the Company
does not own, beneficially or of record, any capital stock or other ownership
interest in any other Person. SAVVIS Communications Corporation, a Missouri
corporation ("SAVVIS MISSOURI") is a corporation duly organized, validly
existing and in good standing under the laws of Missouri. Global Network Assets,
LLC, a Delaware limited liability company ("GLOBAL LLC"), is a limited liability
company, duly formed, validly existing and in good standing under the laws of
Delaware. Savvis Procurement Corporation, a Delaware corporation ("SAVVIS
PROCUREMENT"), is a corporation duly organized, validly existing and in good
standing under the laws of Delaware. Each of SAVVIS Missouri, Global LLC and
Savvis Procurement has all requisite power and authority to own or lease and
operate its properties and assets and to carry out its business as it is now
being conducted. Each of SAVVIS Missouri, Global LLC and Savvis Procurement is
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duly qualified as a foreign corporation to do business, and is in good standing,
in each jurisdiction in which the character of its properties owned or leased or
the nature of its activities makes such qualification necessary, except where
the failure to be so qualified would not have a Material Adverse Effect. As used
in this Agreement, (i) "PERSON" means any corporation, partnership, limited
liability company, trust, joint venture or other entity and (ii) "SUBSIDIARY"
means, with respect to any Person, any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
capital stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of such Person or a combination thereof. SAVVIS Missouri,
Global LLC and Savvis Procurement are the Company's only Significant
Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X).
SECTION 2.03 Capitalization. (a) As of the date hereof, the
authorized capital stock of the Company consists of 250,000,000 shares of Common
Stock and 50,000,000 shares of Preferred Stock, $.01 par value ("PREFERRED
STOCK"), of which 210,000 have been designated Series A Preferred Stock. As of
the date hereof, prior to the issuance of the Preferred Shares, 94,026,666
shares of Common Stock and 158,070 shares of Preferred Stock are issued and
outstanding. All outstanding shares of Common Stock and Preferred Stock have
been duly authorized and validly issued and are fully paid and non-assessable
and have been issued in compliance with all applicable federal and state
securities laws.
(b) As of the date hereof, except for options granted pursuant
to the Company's stock option plan (the "STOCK OPTION PLAN") to purchase an
aggregate 34,426,563 shares of Common Stock, and except as set forth on Schedule
2.03(b) of the Disclosure Letter of the Company, dated the date hereof (the
"DISCLOSURE LETTER"), no subscription, warrant, option, convertible or
exchangeable instrument, stock appreciation or other right (contingent or other)
to purchase or acquire any shares of any class of capital stock or other equity
interest of the Company or any of its Subsidiaries is authorized or outstanding,
and (except as otherwise expressly contemplated by this Agreement) there is not
any agreement, arrangement, understanding or commitment of the Company or any of
its Subsidiaries to issue any subscription, warrant, option, convertible or
exchangeable instrument, stock appreciation or other right (contingent or other)
to purchase or acquire any shares of any class of capital stock or other equity
interest of the Company or any of its Subsidiaries or any security of any kind
convertible into or exercisable or exchangeable for any shares of capital stock
or other equity interest of the Company or any Subsidiary or to distribute to
holders of any class of its capital stock, any evidences of indebtedness or
assets. Except as set forth on Schedule 2.03, there are no preemptive rights,
rights of first refusal or other agreements, arrangements, understandings or
rights with respect to the issue or sale of the Company's or any Subsidiary's
capital stock or securities convertible into, exercisable or exchangeable for
capital stock of the Company or any Subsidiary. Except as set forth on Schedule
2.03 and except for the side letter between the Company, certain WCAS Investors
(as defined therein) and the Purchasers, dated the date hereof (the "SIDE
LETTER") and the Investor Rights Agreement dated as of March 6, 2002 as amended
by Amendment No. 1 dated as of June 28, 2002 (as so amended and together with
the Side Letter, the "INVESTOR RIGHTS AGREEMENT"), the Company is not a party to
or subject to any agreement or understanding, and, to the best knowledge of the
Company, there is no agreement or understanding between or among any Persons
that affects or relates to the voting, or giving of written consents or
nominating directors, with respect to the Company, SAVVIS Missouri, Global LLC
or Savvis Procurement.
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(c) Upon the Closing, the authorized, issued and outstanding
capital stock of the Company will be as set forth on Schedule 2.03(c) to the
Disclosure Letter.
SECTION 2.04 Authorization of Agreements, etc. (a) The Company
has the corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Warrants and the Investor Rights
Agreement, to consummate the transactions contemplated hereby and thereby, and
to conduct its business as now conducted and as proposed to be conducted. Except
as set forth on Schedule 2.04(a) of the Disclosure Letter, each of (i) the
execution and delivery by the Company of this Agreement, the Warrants and the
Investor Rights Agreement and the performance by the Company of its obligations
hereunder and thereunder, (ii) the issuance, sale and delivery by the Company of
all of the Preferred Shares to be issued and sold to the Purchasers hereunder
and (iii) the issuance and delivery by the Company of the Warrants to the
Purchasers will be duly and validly authorized prior to the Closing by all
requisite corporate and stockholder action and will not violate any provision of
applicable law, any order of any Governmental Authority (as defined in Section
2.06), the Certificate of Incorporation or Bylaws of the Company, or any
provision of any indenture, agreement or other instrument to which the Company
or any of its Subsidiaries or their properties or assets is bound, or conflict
with, result in a breach of or constitute (with or without due notice or lapse
of time or both) a default, or result in the vesting, acceleration or material
modification of any benefits under any such indenture, agreement or other
instrument or any compensation agreement or benefit plan, or result in the
creation or imposition of any liens, claims, charges, restrictions, rights of
others, security interests, prior assignments or other encumbrances in favor of
any third Person upon any of the assets of the Company or any of its
Subsidiaries. None of the Company, SAVVIS Missouri, Global LLC nor Savvis
Procurement is in violation of or default of any provision of its articles or
certificate of incorporation or by-laws (or other comparable charter documents).
(b) Except as set forth on Schedule 2.04(b) of the Disclosure
Letter, the issuance, sale and delivery of the Preferred Shares and the
Conversion Shares to the Purchasers and the issuance and delivery of the
Warrants and the Warrant Shares to the Purchasers are not and will not be
subject to any preemptive rights of stockholders of the Company or to any right
of first refusal or other similar right in favor of any Person.
(c) The Preferred Shares, when issued in accordance with the
terms of this Agreement, will be duly authorized and validly issued, fully paid
and nonassessable, issued in compliance with all applicable federal and
securities laws and will have the powers, preferences, rights and qualifications
set forth in the Certificate of Designation. On the Consent Effectiveness Date
(as defined in Section 2.17 below), (i) each of the Conversion Shares into which
the Preferred Shares are convertible in accordance with the Certificate of
Designation shall have been duly authorized by the Company and duly reserved in
contemplation of the conversion of such Preferred Shares and, when issued in
accordance with the provisions of the Certificate of Designation, will be
validly issued, fully paid and nonassessable shares of capital stock of the
Company, issued in compliance with all applicable federal and securities laws
and (ii) each Warrant Share into which the Warrants are exercisable shall have
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been duly authorized by the Company and duly reserved in contemplation of the
exercise of such Warrants and, when issued and paid for in accordance with the
provisions of the Warrants, will be validly issued, fully paid and
non-assessable shares of capital stock of the Company, issued in compliance with
all applicable federal and securities laws.
SECTION 2.05 Validity. This Agreement has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. The Warrants, when duly executed and delivered by the Company in
accordance with this Agreement, will constitute legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
their terms. The Investor Rights Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
SECTION 2.06 Governmental Approvals; Consents. Subject to the
accuracy of the representations and warranties of the Purchasers set forth in
Article III and except for (i) the effectiveness of the Written Consent of
Stockholders, dated March 6, 2002, and the Written Consent of Stockholders,
dated March 18, 2002 (the "WRITTEN CONSENT"), referred to in the Information
Statement filed by the Company with the SEC on June 18, 2002 (the "INFORMATION
STATEMENT"), (ii) the application for listing the Warrant Shares on the Nasdaq
Stock Market, and (iii) the filing with the Secretary of State of Delaware of
the amendment to the Company's certificate of incorporation to increase the
authorized shares of Common Stock to 900,000,000; no registration or filing
with, or consent or approval of, or other action by, any federal, state or other
governmental agency, court, instrumentality or securities exchange (each, a
"GOVERNMENTAL AUTHORITY") or any other third person or entity is or will be
necessary for the valid execution, delivery and performance of this Agreement,
the Warrants or the Investor Rights Agreement or the issuance and delivery of
the shares of Preferred Shares, the Conversion Shares or the Warrant Shares.
SECTION 2.07 Financial Statements. (a) The Company has
furnished to the Purchasers the unaudited consolidated balance sheet of the
Company and its Subsidiaries as of March 31, 2002 (the "MARCH BALANCE SHEET")
and the related consolidated statements of operations, stockholders' equity and
cash flows for the three months then ended. All such financial statements
(including but not limited to any related schedules and/or notes) have been
prepared in accordance with generally accepted accounting principles in the
United States ("GAAP") consistently applied and consistent with prior periods,
except for normal year-end adjustments and the absence of footnotes. All such
financial statements fairly present in all material respects the consolidated
financial position of the Company and its Subsidiaries as of March 31, 2002, and
such statements of operations, stockholders' equity and cash flows fairly
present in all material respects the consolidated results of operations,
stockholders' equity and cash flows of the Company and its Subsidiaries for the
three months ended March 31, 2002.
(b) Except as and to the extent (i) reflected on the March
Balance Sheet, (ii) incurred since March 31, 2002 in the ordinary course of
business consistent with past practice, (iii) set forth on Schedule 2.07(b) of
the Disclosure Letter, or (iv) as disclosed in the Company SEC Filings, neither
the Company nor any of its Subsidiaries has any material debts, liabilities or
obligations of any kind or nature, whether known or unknown, secured or
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unsecured, absolute, accrued, contingent or otherwise, and whether due or to
become due, that would be required to be reflected on a balance sheet, or the
notes thereto, prepared in accordance with GAAP.
(c) Except as disclosed in the Company SEC Filings, since
March 31, 2002, neither the Company nor any of its Subsidiaries has suffered any
Material Adverse Effect.
SECTION 2.08 SEC Filings. The Company has filed all forms,
reports and documents required to be filed with the Securities and Exchange
Commission (the "SEC") since the completion of the Company's initial public
offering on February 18, 2000, and the Company has made available to the
Purchasers, as filed with the SEC, complete and accurate copies of (i) the
Annual Report of the Company on Form 10-K for the years ended December 31, 1999,
2000 and 2001, and (ii) all other reports, statements and registration
statements (including but not limited to Current Reports on Form 8-K and
Quarterly Reports on Form 10-Q) filed by the Company with the SEC since December
31, 2000, in each case including but not limited to all amendments and
supplements (collectively, the "COMPANY SEC FILINGS"). The Company SEC Filings
(i) were prepared in compliance with the requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT"), or the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), and the rules and regulations thereunder, as
the case may be, and (ii) did not at the time of filing (or if amended,
supplemented or superseded by a filing prior to the date hereof, on the date of
that filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 2.09 Absence of Certain Changes or Events. Except as
set forth in the Company SEC Filings, and except as otherwise expressly
contemplated by this Agreement, since March 31, 2002, neither the Company nor
any of its Subsidiaries has (a) issued any stock, bonds or other corporate
securities, (b) borrowed or refinanced any indebtedness for borrowed money, (c)
discharged or satisfied any material claim or incurred or paid any obligation or
liability (absolute or contingent) other than current liabilities shown on the
March Balance Sheet and current liabilities incurred since the date of such
balance sheet in the ordinary course of business consistent with past practice,
(d) in the case of the Company only, declared or made any payment or
distribution to stockholders, or purchased or redeemed any shares of its capital
stock or other securities, (e) sold, exchanged or otherwise disposed of any
material assets except in the ordinary course of business, (f) waived any
valuable right or a material debt owed to it, (g) suffered any damage,
destruction or loss, whether or not covered by insurance, which has materially
and adversely affected its business, (h) made any material change or material
amendment to a Material Agreement (as defined in Section 2.12), (i) suffered any
Material Adverse Effect or (j) except in connection with this Agreement and the
transactions contemplated hereby, entered into any agreement, letter of intent
or similar undertaking to take any of the actions listed in clauses (a) through
(i) above.
SECTION 2.10 Actions Pending. Except as disclosed in the
Company SEC Filings or as set forth on Schedule 2.10 of the Disclosure Letter,
there is no action, suit, arbitration, investigation or proceeding pending or,
to the best knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries or to which the Company's or any of its
Subsidiaries' property is subject, before any court or by or before any
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governmental body or arbitration board or tribunal, which the Company would be
required to disclose pursuant to Item 1 of Part II of Form 10-Q if such Form
10-Q were required to be filed on and as of the date hereof. For the purposes of
this Agreement, the term "best knowledge of the Company" shall mean the actual
knowledge, upon reasonable inquiry, of the executive officers of the Company.
SECTION 2.11 Compliance with Law; Permits. Neither the Company
nor any of its Subsidiaries is in default under or in violation of, in any
respect, any order or decree of any court, Governmental Authority, arbitrator or
arbitration board or tribunal or under any laws, ordinances, governmental rules
or regulations to which the Company or any of such Subsidiaries or any of their
respective properties or assets is subject, except where such default would not
have a Material Adverse Effect. The Company possesses all permits,
authorizations, approvals, registrations, variances and licenses ("PERMITS")
necessary for the Company or its Subsidiaries to own, use and maintain their
properties and assets or required for the conduct of its business in
substantially the same manner as it is currently conducted, except where the
failure to possess any such Permit would not have a Material Adverse Effect.
Except to the extent the failure of any of the following to be correct would not
have a Material Adverse Effect, each Permit is in full force and effect, and no
proceeding is pending or, to the best knowledge of the Company, threatened to
modify, suspend, revoke or otherwise limit any Permit, and no administrative or
governmental actions have been taken or, to the best knowledge of the Company,
threatened in connection with the expiration or renewal of any Permit.
SECTION 2.12 Contracts. Except as disclosed in the Company SEC
Filings or as set forth on Schedule 2.12.A of the Disclosure Letter, there are
no contracts or agreements that are material to the conduct of the Company's
business or to the financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole, that the Company would be required to
disclose pursuant to paragraph 10 of Item 601 of Regulation S-K if a Form 10-Q
were required to be filed on and as of the date hereof. Except as set forth in
the SEC Filings or on Schedule 2.12.B of the Disclosure Letter, each of the
agreements (collectively, the "MATERIAL AGREEMENTS") disclosed as an exhibit in
the Company SEC Filings in response to paragraph 10 of Item 601 of Regulation
S-K under which there are continuing rights or obligations is a valid and
enforceable obligation of the Company and, to the best knowledge of the Company,
of the other parties thereto, except where the failure to be valid or
enforceable would not have a Material Adverse Effect and provided that no
representation is made as to the enforceability of such agreements to the extent
that their enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforceability of
creditors' rights generally or by general equitable principles. Except as set
forth on Schedule 2.12.B of the Disclosure Letter, to the best knowledge of the
Company, the Company has not been notified in writing of any claim that any
Material Agreement is not valid and enforceable in accordance with its terms for
the periods stated therein, or that there is under any such contract any
existing default or event of default or event that with notice or lapse of time
or both would constitute such a default, except any such failure to be valid or
enforceable and any such defaults that, in the aggregate, would not have a
Material Adverse Effect. The Company is not a party to any contract or agreement
that would result in an obligation of the Company to make any payments under
such agreement or contract solely as a result of the execution and delivery of
this Agreement or the consummation of any of the transactions contemplated
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hereby or thereby (including, but not limited to, the issuance or delivery of
the Warrants and the issuance, sale and delivery of the Preferred Shares, the
Conversion Shares or the Warrant Shares). The Company has heretofore made
available true and correct copies of the Material Agreements to the Purchasers.
SECTION 2.13 Insurance. The Company maintains insurance with
respect to its businesses, properties, officers, directors and employees
customary with industry practices. The Company has heretofore made available for
inspection by the Purchasers true and complete copies of all such insurance
policies. Such policies are, and will be, on the Closing Date, in full force and
effect and are, and will be upon the Closing, free from any right of termination
or limitation (other than for non-payment) on the part of the insurance
carriers. None of the Company or any of its Subsidiaries has received any notice
of cancellation or termination in respect of any such policy or is in default
thereunder.
SECTION 2.14 Offering of the Preferred Shares. Assuming the
accuracy of the representations and warranties of the Purchasers set forth in
Article III hereof and the accuracy of the representations and warranties of the
purchasers under the Securities Purchase Agreement with the Company dated as of
March 6, 2002, neither the Company nor any Person acting on the Company's behalf
has taken or will take any action (including but not limited to, any offer,
issuance or sale of any securities of the Company under circumstances which
might require the integration of such transactions with the sale of the
Preferred Shares or the Warrants under the Securities Act or the rules and
regulations of the SEC thereunder) which would require the offering, issuance or
sale of the Preferred Shares or the Warrants to the Purchasers (but not
including the resale thereof) pursuant to this Agreement to be registered under
the Securities Act.
SECTION 2.15 Related-Party Transactions. Except (i) as set
forth in the Company SEC Filings or as set forth on Schedule 2.15 of the
Disclosure Letter, or (ii) as contemplated hereby, there are no existing
material arrangements or proposed material transactions between the Company and
any Person or entity that the Company would be required to disclose pursuant to
Item 404 of Regulation S-K of the SEC if a proxy statement of the Company were
required to be filed on or as of the date hereof, other than arrangements or
transactions between the Company and any of the Purchasers.
SECTION 2.16 Brokers. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by the
Company directly with the Purchasers, without the intervention of any other
Person on behalf of the Company in such manner as to give rise to any valid
claim by any other Person against the Company for a finder's fee, brokerage
commission or similar payment.
SECTION 2.17 Consent Effectiveness Date. The Written Consent
will become effective on July 12, 2002 (the "CONSENT EFFECTIVENESS DATE"), all
as described in the Information Statement, without changes or modifications
thereto.
SECTION 2.18 Registration Rights. Except as set forth in the
Investor Rights Agreement, the Company has not granted or agreed to grant any
Person any registration rights (including piggyback registration rights) to have
any of the presently outstanding securities of the Company or any of its
securities that may subsequently be issued registered with the United States
Securities and Exchange Commission.
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SECTION 2.19 Disclosure. Neither the representations and
warranties contained in this Agreement, nor any other documents or certificates
made or delivered in connection herewith, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Each Purchaser, severally and not jointly, represents and
warrants to the Company on the date hereof and on the Closing Date, as follows:
SECTION 3.01 Organization. Such Purchaser is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite corporate, limited liability or limited
partnership power and authority to operate its properties and assets and to
carry on its business as it is now being conducted.
SECTION 3.02 Authorization. The execution, delivery and
performance by such Purchaser of this Agreement, and the purchase and receipt by
such Purchaser of the Preferred Shares being acquired by it hereunder, have been
duly authorized by all requisite action on the part of such Purchaser and will
not violate any provision of applicable law, any order of any court or other
agency of government, the charter or other governing documents of such
Purchaser.
SECTION 3.03 Validity. This Agreement has been duly executed
and delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization and similar laws relating to or affecting creditors'
rights generally and general equitable principles.
SECTION 3.04 Investment Representations. (a) Such Purchaser is
acquiring the Preferred Shares and the Warrant for its own account, for
investment, and not with a view toward the resale or distribution thereof.
(b) Such Purchaser understands that it must bear the economic
risk of such Purchaser's investment for an indefinite period of time, because
the Preferred Shares and, when issued upon conversion of Preferred Shares, the
Conversion Shares, and the Warrant and, when issued upon exercise of the
Warrant, the Warrant Shares, are not registered under the Securities Act or any
applicable state securities laws and may not be resold unless subsequently
registered under the Securities Act and such other laws or unless an exemption
from such registration is available.
(c) Such Purchaser has the ability to bear the economic risks
of such investment in the Preferred Shares and the Warrant being purchased
hereunder for an indefinite period of time. Such Purchaser further acknowledges
that it has received copies of the Company SEC Filings and has had the
opportunity to ask questions of, and receive answers from, officers of the
Company with respect to the business and financial condition of the Company and
the terms and conditions of the offering of the Preferred Shares and to obtain
additional information necessary to verify such information or can acquire it
without unreasonable effort or expense.
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(d) Such Purchaser has such knowledge and experience in
financial and business matters that such Purchaser is capable of evaluating the
merits and risks of its investment in the Preferred Shares and the Warrants.
Such Purchaser further represents that it is an "accredited investor" as such
term is defined in Rule 501 of Regulation D of the SEC under the Securities Act
with respect to its purchase of the Preferred Shares and acquisition of the
Warrant, and that any such Purchaser that is a limited partnership has not been
formed solely for the purpose of purchasing the Preferred Shares or the Warrant.
SECTION 3.05 Governmental Approvals; Consents. No registration
or filing with, or consent or approval of, or other action by, any Governmental
Authority is or will be necessary by the Purchaser for the valid execution,
delivery and performance of this Agreement.
IV. COVENANTS OF THE COMPANY
SECTION 4.01 Access to Information. From the date hereof until
the Closing Date, the Company will (a) furnish to the Purchasers and their
authorized representatives such financial and operating data and other
information relating to the Company and its Subsidiaries as such Persons may
reasonably request and (b) instruct its counsel, independent accountants and
financial advisors to cooperate with the Purchasers and their authorized
representatives in their investigation of the Company. Any investigation
pursuant to this Section shall be conducted in such manner as not to interfere
unreasonably with the conduct of the business of the Company.
SECTION 4.02 Compliance with Conditions; Commercially
Reasonable Efforts. The Company shall use all commercially reasonable efforts to
cause all conditions precedent to the obligations of the Company and the
Purchasers to be satisfied. Upon the terms and subject to the conditions of this
Agreement, the Company will use all commercially reasonable efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable consistent with applicable laws to consummate and
make effective in the most expeditious manner practicable the issuance, sale and
delivery of the Preferred Shares to the Purchasers in accordance with the terms
of this Agreement.
SECTION 4.03 Consents and Approvals. The Company (a) shall use
all commercially reasonable efforts to obtain all necessary consents, waivers,
authorizations and approvals of all Governmental Authorities, and of all other
Persons required in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby; and
(b) shall diligently assist and cooperate with the Purchasers in preparing and
filing all documents required to be submitted by the Purchasers to any
Governmental Authority in connection with the issuance, sale and delivery of the
Preferred Shares to the Purchasers (which assistance and cooperation shall
include timely furnishing to the Purchasers all information concerning the
Company and its Subsidiaries that counsel to the Purchasers reasonably
determines is required to be included in such documents or would be helpful in
obtaining any such required consent, waiver, authorization or approval).
SECTION 4.04 Reservation of Shares. From and after the Consent
Effectiveness Date referred to in Section 2.17 and so long as any of the
Preferred Shares or the Warrants are outstanding, the Company shall keep
reserved for issuance a sufficient number of shares of Common Stock to satisfy
its conversion obligations under the Certificate of Designation and its exercise
10
obligations under the Warrants. The Company shall cause to be filed, within 15
days of the Consent Effectiveness Date, an amendment to its certificate of
incorporation increasing the authorized number of shares of Common Stock to
900,000,000.
SECTION 4.05 Listing of Shares. The Company shall cause the
Conversion Shares issuable upon conversion of the Preferred Shares and the
Warrant Shares to be issued upon exercise of the Warrants to be listed or
otherwise eligible for trading on the NASDAQ Small Cap Market System or such
other exchange or market at which the Common Stock is traded at the time of
conversion or exercise.
SECTION 4.06 Financial Statements and Reports. So long as the
Company is no longer subject to the reporting requirements of the Securities and
Exchange Act of 1934, as amended, and the Purchasers hold in the aggregate
Conversion Shares or Preferred Shares (or any securities into which such shares
have been converted into or exchanged for in a recapitalization or otherwise) or
convertible into Conversion Shares equal to at least 25% of the number of
Conversion Shares the Preferred Shares are convertible into on the Closing Date,
the Company shall comply with the provisions of Section 4.06(a) and (e) and
shall provide copies of the statements referred to in Sections 4.06(b), (c) and
(d) to each Purchaser:
(a) Books and Records. The Company shall at all times maintain
correct and complete books and records in which full and correct entries shall
be made of all its business transactions pursuant to a system of accounting
established and administered in accordance with GAAP to the extent applicable
and set aside on its books all such proper accruals and reserves as shall be
required under GAAP. The Company shall retain an accounting firm of nationally
recognized standing for the purpose of auditing its financial statements and
reports for each fiscal year.
(b) Monthly Statements. As soon as available, and in any event
within ten (10) days after the end of each month, copies of the balance sheets
of the Company as of the end of such month, and related statements of income and
cash flows of the Company for such month, in each case setting forth in
comparative form the figures for the corresponding month of the preceding fiscal
year, all in reasonable detail, and certified by the chief financial officer of
the Company, as being true and correct in all material respects and, except for
the lack of notes, as having been prepared in accordance with GAAP, subject to
year-end audit adjustments.
(c) Quarterly Statements. As soon as available, and in any
event within forty-five (45) days after the end of each respective quarterly
fiscal period (except the last) of each fiscal year of the Company, copies of
the balance sheets of the Company as of the end of such quarterly fiscal period,
and the related statements of income and cash flows of the Company for such
quarterly fiscal period and for the portion of the fiscal year ending with such
period, in each case setting forth in comparative form the figures for the
corresponding period of the preceding fiscal year, all in reasonable detail, and
certified by the chief financial officer of the Company, as being true and
correct in all material respects and, except for the lack of notes, as having
been prepared in accordance with GAAP, subject to year-end audit adjustments.
(d) Annual Statements. As soon as available and in any event
within one hundred twenty (120) days after the close of each respective fiscal
year of the Company, copies of the balance sheets of the Company as of the close
11
of such fiscal year and the related statements of income and cash flows of the
Company for such fiscal year, in each case, setting forth in comparative form
the figures for the preceding fiscal year, all in reasonable detail and
accompanied by (i) an opinion thereon of independent public accountants of the
Company to the effect that such financial statements have been prepared in
accordance with GAAP and fairly present the financial conditions and results of
operations of the Company and (ii) such accountant's management letter.
(e) Additional Information. The Company shall send to each
Purchaser, (i) all written materials and other information given to the
directors of the Company at the same time such materials are given to the
directors and (ii) promptly upon becoming available, copies of all financial
statements, reports, notices, press releases, proxy statements and other
documents sent by the Company to its stockholders.
V. COVENANTS OF THE PURCHASERS
SECTION 5.01 Agreement to Take Necessary and Desirable
Actions. Each Purchaser shall (a) subject to the satisfaction of the conditions
set forth in Section 6.01, execute and deliver such other documents,
certificates, agreements and other writings and (b) take such other actions, in
each case, as may be reasonably necessary, desirable or requested by the Company
in order to consummate or implement the issuance, sale and delivery of the
Preferred Shares to the Purchasers in accordance with the terms of this
Agreement.
SECTION 5.02 Compliance with Conditions; Commercially
Reasonable Efforts. Each Purchaser will use all commercially reasonable efforts
to cause all of the obligations imposed upon it in this Agreement to be duly
complied with, and to cause all conditions precedent to the obligations of the
Company and the Purchasers to be satisfied. Upon the terms and subject to the
conditions of this Agreement, each Purchaser will use all commercially
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable consistent with
applicable law, to consummate and make effective in the most expeditious manner
practicable the issuance, sale and delivery of the Preferred Shares to such
Purchaser in accordance with the terms of this Agreement.
SECTION 5.03 Consents and Approvals. Each Purchaser (a) shall
use all commercially reasonable efforts to obtain all necessary consents,
waivers, authorizations and approvals of all Governmental Authorities, and of
all other Persons required in connection with the execution, delivery and
performance of this Agreement, or the consummation of transactions contemplated
hereby and (b) shall diligently assist and cooperate with the Company in
preparing and filing all documents required to be submitted by the Company to
any Governmental Authority in connection with such transactions (which
assistance and cooperation shall include, without limitation, timely furnishing
to the Company all information concerning such Purchaser that counsel to the
Company reasonably determines is required to be included in such documents or
would be helpful in obtaining any such required consent, waiver, authorization
or approval).
12
VI. CONDITIONS PRECEDENT
SECTION 6.01 Conditions Precedent to the Obligations of the
Purchasers in connection with the Closing. With regard to the Closing, the
obligations of the Purchasers hereunder are, at their option, subject to the
satisfaction of the following conditions:
(a) Representations and Warranties to Be True and Correct. The
representations and warranties of the Company contained in this Agreement that
are qualified as to materiality or Material Adverse Effect shall be true and
correct and all other representations and warranties of the Company shall be
true and correct in all material respects, each on the Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of such date.
(b) Performance. The Company shall have performed and complied
in all material respects with all agreements, covenants and conditions contained
herein required to be performed or complied with by it prior to or on the
Closing Date.
(c) All Proceedings to Be Satisfactory. All corporate and
other proceedings to be taken by the Company and all waivers and consents to be
obtained by the Company in connection with the transactions contemplated hereby
shall have been taken or obtained by the Company.
(d) Legal Proceedings. On the Closing Date, no preliminary or
permanent injunction or other order, decree or ruling issued by any court of
competent jurisdiction nor any statute, rule, regulation or order entered,
promulgated or enacted by any governmental, regulatory or administrative agency
or authority, or national securities exchange shall be in effect that would
prevent the consummation of the transactions contemplated by this Agreement.
(e) Governmental Approvals. All necessary governmental and
regulatory consents and approvals and necessary third party consents shall have
been obtained.
(f) No Material Adverse Effect. Except for the effects of the
matters disclosed in the Company SEC Filings, there shall have been no Material
Adverse Effect since March 29, 2002, the date on which the Company filed its
Form 10-K for the year ended December 31, 2001.
(g) Opinions of Counsel. The Purchasers shall have received
from Xxxxx & Xxxxxxx, L.L.P. and the chief legal officer of the Company two
opinions, each dated the Closing Date, substantially in the forms delivered to
purchasers of Preferred Stock on March 18, 2002.
(h) GECC Waiver. The Purchasers shall have received a copy of
a waiver from General Electric Capital Corporation consenting to the issuance of
the Preferred Stock and the Warrants to the Constellation Entities.
(i) Board Side Letter. The Purchasers shall have received an
executed copy the Side Letter dated the date hereof among the Company, the
Constellation Entities and certain WCAS Investors (as defined in the Investor
Rights Agreement).
13
SECTION 6.02 Conditions Precedent to the Obligations of the
Company in Connection with the Closing. With regard to the Closing, the
obligations of the Company hereunder are, at its option, subject to the
satisfaction of the following conditions:
(a) Representations and Warranties to Be True and Correct. The
representations and warranties of the Purchasers contained in this Agreement
shall be true and correct in all material respects on the Closing Date with the
same effect as though such representations and warranties had been made on and
as of such date.
(b) Performance. The Purchasers shall have performed and
complied in all material respects with all agreements, covenants and conditions
contained herein required to be performed or complied with by them prior to or
on the Closing Date.
(c) All Proceedings to Be Satisfactory. All proceedings to be
taken by the Purchasers and all waivers and consents to be obtained by the
Purchasers in connection with the transactions contemplated hereby shall have
been taken or obtained by the Purchasers.
(d) Legal Proceedings. On the Closing Date, no preliminary or
permanent injunction or other order, decree or ruling issued by any court of
competent jurisdiction nor any statute, rule, regulation or order entered,
promulgated or enacted by any Governmental Authority shall be in effect that
would prevent the consummation of the transactions contemplated by this
Agreement.
(e) Governmental Approvals. All necessary governmental
approvals and regulatory approvals and necessary third party consents shall have
been obtained.
VII. SURVIVAL OF REPRESENTATIONS; INDEMNITY
SECTION 7.01 Survival of Representations. Subject as set forth
below, all representations and warranties made by any party hereto in this
Agreement or pursuant hereto shall survive for the period commencing on the date
hereof and ending on the second anniversary of the date hereof.
SECTION 7.02 General Indemnity. (a) Subject to the terms and
conditions of this Article, the Company hereby agrees to indemnify, defend and
hold the Purchasers harmless from and against all demands, claims, actions or
causes of action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees and expenses (collectively, "DAMAGES"), asserted against, resulting to,
imposed upon or incurred by the Purchasers by reason of or resulting from a
breach of any representation, warranty or covenant of the Company contained in
or made pursuant to this Agreement.
(b) Subject to the terms and conditions of this Article VII,
each Purchaser hereby agrees, severally and not jointly, to indemnify, defend
and hold the Company harmless from and against all Damages asserted against,
resulting to, imposed upon or incurred by the Company by reason of or resulting
from a breach of any representation, warranty or covenant of the Purchaser
contained in Section 3 and Section 5 this Agreement.
14
SECTION 7.03 Conditions of Indemnification. The respective
several obligations and liabilities of the Purchasers, on the one hand, and the
Company, on the other hand (the "INDEMNIFYING PARTY"), to the other (the "PARTY
TO BE INDEMNIFIED") under Section 7.02 hereof with respect to claims resulting
from the assertion of liability by third parties shall be subject to the
following terms and conditions:
(a) within 20 days after receipt of notice of commencement of
any action or the assertion in writing of any claim by a third party, the party
to be indemnified shall give the indemnifying party written notice thereof
together with a copy of such claim, process or other legal pleading, and the
indemnifying party shall have the right to undertake the defense thereof by
representatives of its own choosing;
(b) in the event that the indemnifying party, by the 30th day
after receipt of notice of any such claim (or, if earlier, by the tenth day
preceding the day on which an answer or other pleading must be served in order
to prevent judgment by default in favor of the Person asserting such claim),
does not elect to defend against such claim, the party to be indemnified will
(upon further notice to the indemnifying party) have the right to undertake the
defense, compromise or settlement of such claim on behalf of and for the account
and risk of the indemnifying party, subject to the right of the indemnifying
party to assume the defense of such claim at any time prior to settlement,
compromise or final determination thereof, provided that the indemnifying party
shall be given at least 15 days prior written notice of the effectiveness of any
such proposed settlement or compromise;
(c) anything in this Section 7.03 to the contrary
notwithstanding (i) if there is a reasonable probability that a claim may
materially and adversely affect the indemnifying party other than as a result of
money damages or other money payments, the indemnifying party shall have the
right, at its own cost and expense, to compromise or settle such claim, but (ii)
the indemnifying party shall not, without the prior written consent of the party
to be indemnified, settle or compromise any claim or consent to the entry of any
judgment which does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the party to be indemnified a release from all
liability in respect of such claim; and
(d) in connection with any such indemnification, the
indemnified party will cooperate in all reasonable requests of the indemnifying
party.
VIII. MISCELLANEOUS
SECTION 8.01 Restrictions on Transfer; Legends. (a) The
Purchasers agree that they will not sell, transfer, assign, pledge, encumber,
distribute or otherwise dispose of the Warrants or any Warrant Shares (a
"TRANSFER") unless such Transfer is made pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
(and, in either case, in compliance with all applicable state securities laws).
(b) The Company agrees, and the Purchasers understand and
consent, that the Company will not cause or permit the Transfer of the Warrants
or any Warrant Shares to be made on its books (or on any register of securities
maintained on its behalf) unless the Transfer is permitted by, and has been made
15
in accordance with, (x) the terms of this Agreement and (y) all applicable
federal and state securities laws. The Purchasers agree that in connection with
any Transfer of the Warrants or any Warrant Shares that is not made pursuant to
a registered public offering, the Company may request an opinion of legal
counsel reasonably acceptable to the Company stating that such transaction is
exempt from registration under all applicable laws. Any Transfer of the Warrants
or any Warrant Shares other than in accordance with this Section will be void.
(c) From and after the date hereof (and until such time as
such securities have been sold to the public pursuant to an effective
registration statement under the Securities Act or pursuant to Rule 144 or the
holder of such securities shall have requested the issuance of new certificates
in writing and delivered to the Company an opinion of legal counsel reasonably
acceptable to the Company to such effect), all certificates representing the
Warrants and each certificate representing the Warrant Shares and any shares of
capital stock received in respect thereof, whether by reason of a stock split or
share reclassification thereof, a stock dividend thereon or otherwise, and each
certificate for any such securities issued to subsequent transferees of any such
certificate that are held by the Purchasers shall bear legends which shall state
the following:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR ANY
APPLICABLE STATE LAW, AND NO INTEREST HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, DISTRIBUTED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A)
THERE IS AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER
SAID ACT AND LAWS OR (B) SUCH TRANSACTION IS EXEMPT FROM SUCH
REGISTRATION."
SECTION 8.02 Expenses, etc.. All costs and expenses incurred
in connection with this Agreement shall be paid by the party incurring such cost
or expense; provided, that, upon execution of this Agreement, the Company shall
pay the reasonable and actual legal, due diligence and other reasonable out of
pocket costs and expenses of the Purchasers.
SECTION 8.03 Survival of Agreements. All covenants, agreements
and representations and warranties (except in the case of representations and
warranties, as limited in Section 7.01) made herein shall survive the execution
and delivery of this Agreement and the issuance, sale and delivery of the
Preferred Shares, notwithstanding any investigation made at any time by or on
behalf of any party hereto. All statements contained in any certificate or other
instrument delivered by the Company hereunder shall be deemed to constitute
representations and warranties made by the Company.
SECTION 8.04 Notices. Any notice or other communications
required or permitted hereunder shall be deemed to be sufficient if contained in
a written instrument delivered in person or duly sent by first class certified
mail, postage prepaid, by nationally recognized overnight courier, or by
facsimile addressed to such party at the address or facsimile number set forth
below or such other address or facsimile number as may hereafter be designated
in writing by the addressee to the addressor listing all parties:
16
if to the Company, to
SAVVIS Communications Corporation
00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
if to the Purchaser to:
Constellation Venture Capital II, L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx, Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx, Esq.
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of mailing, on the fifth business day following the date of such
mailing, (c) in the case of delivery by overnight courier, on the business day
following the date of delivery to such courier, and (d) in the case of
facsimile, when received.
SECTION 8.05 Press Releases and Public Announcements. All
public announcements or disclosures relating to this Agreement shall be made
only if mutually agreed upon by the Company and the Purchasers except to the
extent such disclosure is, in the reasonable good faith opinion of the Company
or the Purchasers, required by law or by regulation of any applicable national
stock exchange or any SEC recognized trading market or equivalent foreign
exchange or trading market; provided that any such required disclosure shall
17
only be made, to the extent consistent with law and regulation of any applicable
national stock exchange or SEC recognized trading market or equivalent foreign
exchange or trading market, after consultation with and agreement by the
Purchasers or the Company as applicable.
SECTION 8.06 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to conflict of laws principles.
SECTION 8.07 Entire Agreement. This Agreement (including the
Schedules and Exhibits thereto) constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be amended or modified nor
any provisions waived except as set forth in Section 8.10.
SECTION 8.08 Assignment; No Third Party Beneficiaries. This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by the Company without the prior written consent of the Purchasers,
and may not be assigned or delegated by the Purchasers without the Company's
prior written consent. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties and their respective
successors and permitted assigns. This Agreement is not intended to confer any
rights or benefits on any Persons other than the parties hereto, except as
expressly set forth in Section 7.02 or as contemplated by this Section 8.08. Any
designee or assignee permitted under this Section 8.08 is referred to herein as
a "PERMITTED DESIGNEE."
SECTION 8.09 Termination. (a) This Agreement may be terminated
at any time prior to the Closing:
(i) by mutual written agreement of the Company and the
Purchasers;
(ii) by either the Company or the Purchasers if the Closing
shall not have been consummated on or before August 31, 2002, unless
extended by mutual agreement or unless the failure to consummate the
Closing is attributable to a failure on the part of the party seeking
to terminate this Agreement to perform any obligation required to be
performed by such party at or prior to the Closing Date; or
(iii) by either the Company or the Purchasers if consummation
of the transactions contemplated hereby to be consummated on the
Closing Date would violate any nonappealable final order, decree or
judgment of any court or Governmental Authority having competent
jurisdiction.
(b) The party desiring to terminate this Agreement pursuant to
Section 8.09(a)(ii) or (iii) hereof shall promptly give notice of such
termination to the other party.
(c) If this Agreement is terminated as permitted by this
Section 8.09, such termination shall be without liability of either party (or
any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other parties to this Agreement; provided
that if such termination shall result from the willful (i) failure of either
party to fulfill a condition to the performance of the obligations of the other
party, (ii) failure of either party to perform a covenant of such party in this
Agreement or (iii) breach by either party hereto of any representation or
18
warranty or agreement contained herein, such party shall be fully liable for any
and all losses incurred or suffered by the other party as a result of such
failure or breach. The provisions of Sections 8.02, 8.03, 8.04, 8.05, 8.06, and
8.10 shall survive any termination hereof pursuant to this Section 8.09.
SECTION 8.10 Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, by the Company and the Purchasers.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder will operate as a waiver thereof, nor will any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege, nor will any
waiving of any right power or privilege operate to waive any other subsequent
right, power or privilege. The rights and remedies herein provided will be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 8.11 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8.12 Parties in Interest. All covenants and agreements
contained in this Agreement by or on behalf of any party hereto shall bind and
inure to the benefit of the respective successors and Permitted Designees of
such party hereto whether so expressed or not.
19
IN WITNESS WHEREOF, the Company and the Purchaser have
executed this Agreement as of the day and year first above written.
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Lane X. Xxxxxxxxxx
Name: Lane X. Xxxxxxxxxx
Title: Vice President and
Acting General Counsel
CONSTELLATION VENTURE CAPITAL II, L.P.
By: Constellation Ventures Management, L.L.C.,
its General Partner
By: The Bear Xxxxxxx Companies, Inc.,
its Managing Member
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: SMD
CONSTELLATION VENTURE CAPITAL
OFFSHORE II, L.P.
By: Constellation Ventures Management, L.L.C.,
its General Partner
By: The Bear Xxxxxxx Companies, Inc.,
its Managing Member
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: SMD
20
THE BSC EMPLOYEE FUND IV, L.P.
By: Constellation Ventures Management, L.L.C.,
its General Partner
By: The BSCGP, Inc.,
its Managing Member
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: SMD
CVC II PARTNERS, L.L.C.
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: SMD
21
ANNEX I
PURCHASERS PREFERRED SHARES PURCHASE PRICE
----------------------------------------------- ---------------- --------------
Constellation Venture Capital II, L.P. 10,576 $ 10,576,000
Constellation Venture Capital Offshore II, L.P. 5,000 5,000,000
The BSC Employee Fund IV, L.P. 4,190 4,190,000
CVC II Partners, L.L.C. 234 234,000
------------
Total $ 20,000,000
